Consent in the crime of human trafficking

According to the article 1651, trafficking of the human beings from the Criminal Code of Republic of
Moldova it is mentioned that this crime can be done with or without the consent of the victim. A similar
provision can be mentioned in the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime, which states: (b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set
forth in subparagraph (a) have been used. 2 A child cannot consent even if the 'means' are not
involved.3Thus we can see that according to our national legislation, which coresponds to the
international provisions of the treaties the consent in such crimes does not preclude the criminal character
of the act itself of human trafficking.
From the analysis of line (1) of article 165 we can see that the consent has to be given regarding the
recruitment, transportation, transfer and harbouring or reciept of persons and is not mentioned regarding
the the exploitation, according to our national doctrine. 4 Thus, the consent of the victm does not preclude
the liability of the infringer. A free consent can be present only when a person is not influenced to give it
with the use of coercion, threatening, confiscation of the documents, servitute, or other additional actions
that are mentioned by Moldovan Criminal Code. Moreover, initial consent to commercial sex or a labor
setting prior to acts of force, fraud, or coercion (or if the victim is a minor in a sex trafficking situation) is
not relevant to the crime, nor is payment.5 For a consent to be considered freely expressed the person shall
have the possibility to express himself independently, being convinced about the usefulness of the real
situation.A totally free consent may exist only when it was given without an aplications of means
mentioned in article 165.In conclusion, even if the victim gave her consent regarding the trafficking, it
wont have any effect as long as it will be nulified, because the criminal used actions that exclude the
freedom of expression. In the case of Un Treaty provisions, the presence of exploatitaion is important,
thus: The fact that a victim knew in advance that she was going to work in a brothel does not mitigate
the criminal liability of the traffickerthe element of exploitation remains. The gravity of the offence is
not diminished because the victim was aware of the nature of the work but not aware of the working
conditions.6
According to the romanian doctrine, another reason that explains why the consent does not eliminate
the criminal character of the actions of trafficking is that in this case the dignity of the person is implied,
because it supposes a transformation of a person into an exploitation object and it represents a limit of the
effect of the consent.7 If analysing different state practices there are 2 positions, the Liberal Approach
prioritizes consent by applying blame and moral culpability for the offense only under circumstances in
1

Criminal Code of Republic of Moldova,, Nr 195, 14.04.2009

2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized Crime

3 http://www.unodc.org/unodc/en/human-trafficking/faqs.html
4 Drept Penal, Partea Special, Volumul I, Sergiu Brnz, Vitalie Stati, Chiinu, 2011
5 http://www.traffickingresourcecenter.org/what-human-trafficking/myths-misconceptions
6 Toolkit to Combat Trafficking in Persons, GLOBAL PROGRAMME AGAINST TRAFFICKING IN HUMAN BEINGS, United
Nations, Office on Drugs and Crime

7 Consimmntul persoanei vtmate - Cauz justificativ potrivit Noului Cod Penal, Nistor Tudor - Ioan, Tirgu
Mures 2010

which consent is negated by fraud, force, or coercion. And the second approach the Gendered approach,
discounts the individuals 147 consent, claiming instead that consent is irrelevant in circumstances in
which the actor/consenter is being exploited. Each view is arguably supported by some component of
antitrafficking legislation.8We can see that in our contrys case it is applied the second approach, the one
that is in accordance with itnernational provisions too.
The consent that is viciatedand not freely expressed when the means mentioned in the article are used
is the element that may differentiat the crime of human trafficking from toher crimes, such as pimping or
organization of begging.9

8 HUMAN TRAFFICKING VICTIM IDENTIFICATION: SHOULD CONSENT MATTER?, SAMUEL VINCENT JONES
9 Delimitarea traficului de fiine umane de unele infraciuni adiacente, Alexandru
Tnase